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2025 DIGILAW 751 (GUJ)

Sajidbhai Jamalbhai Master v. State Of Gujarat

2025-07-14

GITA GOPI

body2025
JUDGMENT : GITA GOPI, J. 1. Challenge is given to the judgment of conviction and sentence dated 22.9.2006 passed by the learned Additional Sessions Judge, Fast Track Court, Vadodara in Sessions Case no.156 of 2004, whereby both the accused came to be convicted for the offence punishable under Section 5 of the Explosive Substances Act, 1908 and Sections 286 and 120B of the INDIAN PENAL CODE , 1860 (IPC). The accused were sentenced to undergo rigorous imprisonment of two years for the offence punishable under Section 5 of the Explosive Substances Act, 1908 and six months simple imprisonment for the offence punishable under Sections 286 and 120B of IPC. The sentences were ordered to run concurrently and set off for the imprisonment undergone was given by the learned Additional Sessions Judge. The accused were also fined for Rs.500/- each and in default of payment of fine, one month simple imprisonment was awarded. 2. Learned advocate Mr. Pravin Gondaliya for the appellants has submitted that there is a grave error of law in passing the order of conviction. The learned Judge has not appreciated the evidence of the witnesses and the facts of the case in proper spirit and right perspective and has erred in holding and believing the appellants as guilty for the offence punishable under Section 5 of the Explosive Substances Act, 1908, wherein no sanction has been granted for the trial to proceed. Learned advocate Mr. Gondaliya referring to the provision of Section 7 of the Explosive Substances Act, 1908 stated that trial itself is bad in law as Section 7 lays down restriction on the trial of offence under the Explosive Substances Act, 1908 and stated that unless and until the consent is given by the District Magistrate, no Court shall proceed the trial of any person for offence against them under the Act. 2.1 Mr. Gondaliya further submitted that no sanction has been granted to the prosecution, the conviction is absolutely illegal and contrary to law and thereby, is required to be quashed and set aside. 2.2 Referring to the facts of the case, Mr. Gondaliya has submitted that as per the evidence of the investigating officer and as per the panchnama made on 2.3.2004, material recovered at the place of panchnama of 3.3.2004 raises suspicion on the story of the prosecution. Mr. 2.2 Referring to the facts of the case, Mr. Gondaliya has submitted that as per the evidence of the investigating officer and as per the panchnama made on 2.3.2004, material recovered at the place of panchnama of 3.3.2004 raises suspicion on the story of the prosecution. Mr. Gondaliya submitted that the alleged incident took place on 2.3.2004 at around 12.45 hrs., wherein for the same offence, FIR came to be lodged by the investigating officer on 3.3.2004 at around 20.15 hrs. The delay of lodging the complaint for the recovery which had already been made on that day creates contrary case of the prosecution and the same substance is also shown to be recovered on the next date which raises serious doubt upon the story of the prosecution and therefore, submitted that rightly, no permission had been granted by the District Magistrate. 2.3 Mr. Gondaliya further submitted that in fact, no explosive substance has been recovered from the possession of the accused. Mr. Gondaliya has submitted that possession of the residential house was not of the ownership of the accused. Mr. Gondaliya has submitted that some of the accused who were shown in the FIR have been dropped in the charge-sheet by the report under Section 169 of the Code of Criminal Procedure, 1973 by the investigating officer and the prosecution has absolutely failed to prove the intention of the appellants and further submitted that the explosive substances as per the Act has not been proved by the prosecution and further in the charge-sheet, none is shown as buyer or seller or carrier of the explosive substance shown in the FSL report and therefore, being obsolete evidence on the part of the prosecution, the conviction would become bad in law, which the learned Trial Court Judge failed to appreciate. 2.4 Learned advocate Mr. Gondaliya further submitted that the learned Sessions Judge only upon technical defect held the appellant liable which has culminated into the order of conviction and a false case has been planted against the appellant by the State machinery and in absence of sanction, the conviction is required to be set aside. 3. Per contra, Ms. 2.4 Learned advocate Mr. Gondaliya further submitted that the learned Sessions Judge only upon technical defect held the appellant liable which has culminated into the order of conviction and a false case has been planted against the appellant by the State machinery and in absence of sanction, the conviction is required to be set aside. 3. Per contra, Ms. Monali Bhatt, learned APP, referring to the observations of the learned Judge and the deposition of the investigating officer, has submitted that it is not only the case under the Explosive Substances Act, 1908, but the provisions Section 286 read with Section 120B of the IPC had been invoked. The prosecution could prove the offence under Section 286 of the IPC. Ms. Monali Bhatt, learned APP, by referring to the FSL officer examination-in-chief as well as the cross-examination at Exh.42, submitted that the things which were found to have been blasted was not the substance which could be considered as gas particles of LPG gas cylinders and therefore, submitted that the investigating officer in his deposition has clarified that since 90 days period for filing the charge-sheet was about to exhaust and therefore, on finding sufficient evidence, charge-sheet had been filed. 4. The learned Trial Court Judge had raised the issue for determination as under:- 1. Whether the prosecution proves that the explosion took place at the place of offence is due to the explosive substance? 2. Whether the prosecution proves that the accused were in the possession of the explosive substance or explosive? 3. Whether the prosecution proves that the accused had the intention to cause explosion using the Explosive Substance jointly with each other? 4. Whether the prosecution obtained sanction as per Section 7 of the Act? 5. Whether non-production of sanction is fatal to prosecution case? 6. What order? The answer of the above issues are as under: 1. Affirmative 2. Affirmative 3. Affirmative 4. No 5. No. As per the findings. 6. As per the final order. 5. The prosecution was to prove whether the explosion had taken place at the place of offence due to explosive substance. The prosecution on that behalf had examined PW1 and PW2 at Exhs.13 and 14 who are the Panchas of the place of offence. Both the Panchas were declared hostile. The learned Judge had observed that the Panchnama had not supported the prosecution case. The prosecution on that behalf had examined PW1 and PW2 at Exhs.13 and 14 who are the Panchas of the place of offence. Both the Panchas were declared hostile. The learned Judge had observed that the Panchnama had not supported the prosecution case. The relevance was given to the deposition of Rajendra Uttamrao Vaghle who is examined as PW6 who was on his duty with in-charge Police Sub-Inspector B.U. Rathod on receiving wardhi of gas cylinder blast in the street of Mahadeviya Masjid at Taiwada and accordingly, he along with his superior officer and one operator, H.C. Nabib Istapji traveled to a bungalow. There were two persons along with them. They saw blood stains and pieces of iron sheet, iron nails and defused fuse. The blood stains were around the house and two persons were injured and there was only a woman at the house and no other person. The superior officer has called FSL officer. In the cross-examination, the witness had stated that beside Gajaravadi area, there was Taiwada, and in that Taiwada area, there are many factors for manufacturing cup boards and in that factory, there would use of nails, iron and glass. He also affirmed that people keep rough goods in the houses and used them in the factory. He also affirmed that in the lower part of that building, there was a garage for colouring the cars. In his cross-examination, he has affirmed that prior to their reaching the place, they had not received any information of any explosion because of some explosive substance. The place was ground floor plus two floors. 6. The learned Sessions Judge has also referred to the evidence of Ravindra Nikam who was in charge of bomb disposal squad as PW7 at Exh.20. He reached the place of offence as per the message on 3.3.2004 stating that there was explosion at Taiwada and the message was in connection with Panigate Police Station diary no.9/04. He deposed that by visiting the place of explosion, he noticed explosive substance on the lower part (Chorkhana of the cupboard). He clarified that explosive fragment means that the bomb which got exploded contains glass pieces and iron nails and other sharp substance which were scattered. Thereafter, they found one circuit at the place that was sent for the FSL examination at Gandhinagar. He clarified that explosive fragment means that the bomb which got exploded contains glass pieces and iron nails and other sharp substance which were scattered. Thereafter, they found one circuit at the place that was sent for the FSL examination at Gandhinagar. The prosecution evidence of PW8 – Pathak Bhautikbhai Nandshankar at Exh.22 who was asked to visit the place in connection with diary no.9/04 of Panigate Police Station had deposed about the condition of the place and the articles which were collected for sending it for examination. He referred as cotton thread samples which were taken from various places of gallery and the room, the place of incident. The doors of the cup board and the frame, drawer of the cup board and the pipe, whereupon cotton was used to take the sample of remains. Below the cupboard, pieces of iron sheets, the circuit of the clock, fuse wire and iron knob were found. 7. The learned APP has referred to the deposition of the witness to draw the attention of the Court that the witness has stated that in the Chorkhana, prima facie, he found that explosive substance was blasted. The learned Judge has referred to the Muddamal which was sent for examination. The biological and serological analysis report was examined during the course of trial. The witness – PW16 at Exh.42 – Scientific Officer of FSL has deposed before the Court of receiving the seal particles and on analysis of the Muddamal, he has seen the presence of potassium chloride, potassium nitrate, tri-sulpher and carbon. In his evidence, he has given the information regarding the result of the presence of explosive element and according to him, potassium chloride was found in the result of analysis which was sensitive to heat, pressure and flame. His evidence showed the presence of potassium nitrate, tri-sulpher and carbon in the analysis, where the constituents of gun powder was found. The witnesses also received parcels containing blood stains sent to DNA department to note the presence of blood. The witness identified the report of the opinion at Exh.43 and according to the witness, FSL officer stated that the substance, which was found could be fatal for human and if the quantity is relied upon, then, that could be dangerous and fatal for human. The witness identified the report of the opinion at Exh.43 and according to the witness, FSL officer stated that the substance, which was found could be fatal for human and if the quantity is relied upon, then, that could be dangerous and fatal for human. In the cross-examination of the witness - PW16, he referred to certain articles, which were sent to him and stated that there was no explosive substance found in it. The article which he referred to was Articles 3/1 to 3/5, 8/3, 8/4, 9/4, 9/5, 10/2 and 10/3. The witness was confronted with the question that if the explosive substance had come in contact with all these articles, then, they would have found presence of potassium chloride, potassium nitrate, tri-sulpher and carbon on it. The witness states that he could not definitely answer to it. 8. In his deposition, he further states that in LPG gas, there would be hydrocarbon and affirmed that if LPG gas cylinder gets blast, then, there would be great damage on the walls of the house. He affirmed the suggestion that in the Diwali crackers, the powder would contain potassium nitrate and sulpher and carbon elements. He affirmed that in his opinion, he has not referred to the quantity of the element and the lot of the element. He affirmed that the analysis, which was done were of the particles, which were after the explosion and he had not conducted heat test by giving direct flame and has also affirmed that he has not referred to the method used for the analysis in his report. 9. The evidence of this witness and the witnesses referred as PW8 would become relevant to note that there was some substance in the Chorkhana of the cupboard. The presence of the accused at the relevant point of time of examination of the Panchnama has not been shown by the prosecution. As per the prosecution, one woman had showed the house. She has not been examined to fortify the claim of showing the place of incident. However, the blast at the place could not be denied and the Muddamal articles were collected from the place of offence is not denied with the presence of the accused being injured in the incident. The other relatives of the accused have not been charge-sheeted though referred in the FIR. However, the blast at the place could not be denied and the Muddamal articles were collected from the place of offence is not denied with the presence of the accused being injured in the incident. The other relatives of the accused have not been charge-sheeted though referred in the FIR. The injured accused persons at the place of incident cannot be denied. Thus, the case as found of negligence in handling the explosive substance under Section 286 read with Section 120B of the IPC could be said to be proved. The explosive substance has been observed by the FSL officer to be endangering the human life and causing injury to the persons. The accused themselves have received the injury so the learned Trial Court Judge has convicted the accused under Section 286 read with Section 120B of the IPC for sentence of six months. As per the jail remarks, the appellant/accused no.1 – Sajidbhai Jamalbhai Mehta has already undergone seven months and twenty days imprisonment and appellant/accused no.2 – Zahirbhai Iqbalhussain Tailor had already undergone six months and fourteen days. 10. The vital question which requires consideration is about issue nos.4 and 5 which were raised for the prosecution sanction as per Section 7 of the Explosive Substances Act, 1908 and non-production of the sanction whether it would be fatal to the prosecution case. The learned Trial Court Judge has deliberated on the issue and has observed in Paragraphs 60 and 61 as under:- “60. My answer to this point is in negative. The sanction is accorded by the sanctioning officer, after going through the whole records before him. It is the sancrosanct duty on this officer. The sanctioning officer accords the sanction on demand from the investigation officer. It is the duty of the investigating officer to see to it that the sanction is obtained and submitted prior to committal of case before the court. Delay in non obtaining has to be clarified accordingly. The non- observance of the provision is considered to be purely negligency, carelessness, in duty. In cases of highest serious nature, where negligence on the part of. Investigating officer can not be the criteria: where the miscarriage of justice is seen to be caused by considering the negligence: but material negligence can be considered when the prejudice is caused to the accused. I do not like to discuss prejudice, believing it to be understood. In cases of highest serious nature, where negligence on the part of. Investigating officer can not be the criteria: where the miscarriage of justice is seen to be caused by considering the negligence: but material negligence can be considered when the prejudice is caused to the accused. I do not like to discuss prejudice, believing it to be understood. Now, question arise, who is the best person to accord sanction? A person giving it, or who see to it's legibility: correctness? Can the court decide the sanction? My view to this point is yes. The sanctioning officer has a limited scope to accord sanction from the materials put before him, whereas the same materials are produced before the court. And hence, application of mind is always there in judicial functioning, by the court; to arrive at the conclusion of the trial, whether the sanction would have been denied or accorded or not. Even if, the court has to examine the evidence, and records of according the sanction. Hence under the circumstances, if a negligent act of investigation officer, in obtaining sanction is appeared, the technicalities of not obtaining the sanction, which can be done by the courts also, which could have been done, can not be made a defence or can not be considered fatal to the prosecution case; where the court is put to the situation of rendered powerless to do justice, in the facts and circumstances, where no such prejudice is seen against the accused and the mandatory provision seems to be directive and formal in nature. 61. The court is not powerless, under the circumstances, for the reasons discussed above, in my views towards discharging the judicial duty and towards the paramount object of act and justice. The circumstances, and issues before me made to express my views to arrive at the decision. In 1990 Cri.L.J. NOC 70(Patna) in which, 1972 Cri.L.J. 1214 (Supreme court was relied on where it is held that where the prosecution of the accused was initiated for offence under sec.4-B and 5 of the 1908 Act and the accused were put on trial before Sessions Judge who at the stage of delivery of the judgment detected that for trial under the aforesaid offence consent of the central govt. or appropriate authority was essential under sec.7 of 1908 Act and came to the conclusion that no judgment as contemplated by sec.235 of Cr.P.C. could be given but the prosecution could take step for fresh trial it was held that the prosecution did not take any step to obtain the consent of the central govt or the appropriate authority till the same pointed b the defence at the time of delivering judgment. It was not the duty of the accused to rectify the defect of the prosecution and sessions judge was not justified to give opportunity to the prosecution to fill up lacuna in the prosecution case. The offences are alleged to have been committed as far as beg as in the year 1992.charges were framed by the trial court on 26/4/85 and the impugned order was passed on 23/12/86. Above all this long period for which the accused had to face rigors of prosecution including the trial it was not desirable to again give opportunity to the prosecution to put them on trial after obtaining the consent. Besides this it was also not certain whether consent would be granted or not consent would not be granted that possibility also could not be ruled out so, the accused not be kept under the mental torture for indefinite period.” 11. Section 7 of the Explosive Substances Act, 1908 reads as under:- “7. Restriction on trial of offences.- No Court shall proceed to the trial of any person for an offence against this Act except with the consent of the District Magistrate.” 12. The provision itself raise a restriction on the trial of offence under the Explosive Substances Act, 1908. No Court can proceed with the trial unless the consent of the District Magistrate is received. The investigating officer in his deposition has stated that since the time period for filing the charge-sheet was about to complete and therefore, with the expectation of receiving the consent and to produce it before the Court prior to the conclusion of the trial, he had filed the charge-sheet. The learned Trial Court Judge was required to ask for the consent of the District Magistrate prior to proceeding with the trial against the accused. The learned Trial Court Judge was required to ask for the consent of the District Magistrate prior to proceeding with the trial against the accused. The proceedings against the accused under the Explosive Substances Act, 1908 would become invalid since no consent was placed on record of the District Magistrate to proceed against the accused under the Explosive Substances Act, 1908. Here, the Trial Court took upon itself, the function of sanctioning. The very words employed in Section 7 of the Explosive Substances Act, 1908 put restriction on trial, it does not permit the Court to proceed the trial without the consent of the District Magistrate. 13. Learned advocate Mr. Gondaliya has relied upon the judgment in the case of Aba @ Munjba s/o Rajabhau Giri v. The State of Maharashtra rendered in Criminal Appeal no.266 of 2014 before the Judicature of Bombay Bench at Aurangabad, which was pronounced on 16.7.2021. Learned advocate Mr. Gondaliya, thus, submitted that the investigating officer has no right individually to decide the proceedings under the Explosive Substances Act, 1908 without the consent of the District Magistrate since there are all chances of falsification and therefore, legislature in its own wisdom has very wisely made the provision for receiving the consent of the District Magistrate prior to any trial under the Explosive Substances Act, 1908. 14. Countering the said submission, Ms. Monali Bhatt, learned APP has submitted that as per the evidence of the investigating officer, the draft charge-sheet was prepared. The procedure was adopted for the consent to be received by the District Magistrate. Thus, waiting for the same, the investigating officer within the time period submitted the charge-sheet and thus, relying on the observations of the learned Sessions Judge, the learned APP has submitted that the proceedings cannot be, thus, made bad in law. 15. In the case of Aba @ Munjaba s/o Rajabhau Giri (supra), the case of State of M.P. v. Bhupendra Singh, AIR 2000 SC 679 and the case of Hussain son of Ismail & Anr. v. State of Madhya Pradesh, 2012 CJ (MP) 1726 has been referred, wherein it has been observed as under:- “We find the very wording of section 7 directing that no court shall proceed to the trial of any person for an offences against this Act except with the consent of the District Magistrate is mandatory in nature and not directory. v. State of Madhya Pradesh, 2012 CJ (MP) 1726 has been referred, wherein it has been observed as under:- “We find the very wording of section 7 directing that no court shall proceed to the trial of any person for an offences against this Act except with the consent of the District Magistrate is mandatory in nature and not directory. As per the statement of Objects and reasons, the Governor-General- in-Council considers it necessary to supplement the existing law by an Act on the lines of English Explosive Substances Act, 1883, which was enacted for the express purpose of dealing with anarchist crime. 15.1 In the case of State of Madhya Pradesh vs. Bhupendra Singh , reported in AIR 2000 SC 679 , the Hon'ble Supreme Court has observed that power of granting consent under Section 7 of the said Act of 1908 rests with the Central Government. The Central Government has delegated it to the District Magistrate. Thus, it is not competent for the State Government to further delegate the power to Additional District Magistrate, which the Central Government has delegated to the District Magistrate. In the facts of the said case, the Supreme court held that sanction granted by the Additional District Magistrate was not valid. Though there is no authoritative pronouncement of the Supreme Court as to whether obtaining the consent of the District Magistrate is mandatory or directory, however, in para 3 of the judgment, the Supreme court has observed that for a prosecution under the said Act of 1908, the consent of the Central Government is requisite by virtue of the provisions of Section 7 thereof. It is further observed by the Hon'ble Supreme Court that the power granting consent under Section 7 of the said Act of 1908 rests upon the Central Government and the Central Government has delegated it to the District Magistrate. 15.2 In the case of Hussain s/o Ismail and one another v. State of Madhya Pradesh, reported in 2012 CJ (MP) 1726, in para 5, the Madhya Pradesh High Court has made the following observations:- "5. 15.2 In the case of Hussain s/o Ismail and one another v. State of Madhya Pradesh, reported in 2012 CJ (MP) 1726, in para 5, the Madhya Pradesh High Court has made the following observations:- "5. Appellants have been tried for the offence punishable under section 3 read with Section 5 of the Explosives Act but learned Trial Court has failed to see that there was no consent of District Magistrate for trial of the appellants for the offence punishable under Section 3 read with Section 5 of the Explosives Substances Act, 1908. Section 7 of the said Act makes a provision that no Court shall proceed to the trial of any person for an offence against this Act except, with the consent of the District Magistrate. There is no letter of consent from District Magistrate for prosecution of the appellants or other accused persons. Therefore, trial of the appellants for the offence punishable under Section 3 read with Section 5 of the Explosives Substances Act, 1908 is vitiated, therefore, learned Trial Court is not justified in convicting the appellants for the offence punishable under Section 3 read with Section 5 of the Explosives Substances Act, 1908. It is observed by the High Court of Madhya Pradesh that there is no letter of consent from the District Magistrate for prosecution of the appellant or other accused persons. Therefore, the trial of the appellant for the offences punishable under Section 3 read with Section 5 of the said Act of 1908 is vitiated. Therefore, the trial court is not justified in convicting the appellants for the offence punishable under Section 3 r.w. section 5 of the said Act of 1908. 15.3 In the case of Prakash Chandra Yadav v. State of Bihar , LAWS (PAT) 2016-12-39 , the High Court of Patna has taken similar view with consensus that there was no proper consent under Section 7 of the Act of 1908 and held that the Court below has rightly acquitted the appellant of the charges under the said Act of 1908. 15.4 In the case of Ajibure Sheikh v. The State of Jharkhand and Ors. , reported in AIR JHARR 2008 (1) 97421, the Jharkhand High Court in para 10 of the judgment has made the following observations:- "10. Section 7 of the Explosive Substance Act reads as under: 7. 15.4 In the case of Ajibure Sheikh v. The State of Jharkhand and Ors. , reported in AIR JHARR 2008 (1) 97421, the Jharkhand High Court in para 10 of the judgment has made the following observations:- "10. Section 7 of the Explosive Substance Act reads as under: 7. Restriction on trial of offences: No Court shall proceed to the trial of any person for an offence against this Act except with the consent of the District Magistrate. From a plain reading of the aforesaid Section, it is clear that the Trial of a case against the accused against whom allegations are for commission of offence under the said Act, the same cannot proceed unless the District Magistrate accords consent/sanction as envisaged under Section 7 of the Explosive Substance Act. The word used in the aforesaid Section is "Shall" and therefore, there is a complete restriction on the trial of the offence without the consent or sanction by the District Magistrate." It is observed by the Jharkhand High Court that the word used in Section 7 of the said Act of 1908 is "shall" and therefore, there is complete restriction on the trial of the offence without consent or sanction by the District Magistrate.” 15.5 In the case of Prasadi Mahto @ Talo Mahto and Taleshewar Mahato v. State of Jharkhand , reported in LAWS (JHAR) 2007-2-21 though the consent as prescribed under Section 7 of the said Act of 1908 was obtained after commencement of the trial, however, in para 6, the Jharkhand High Court has observed that the language of Section 7 of the said Act of 1908 speaks 'no court shall proceed to the trial of any person' which puts embargo upon the trial court and for want of consent as required under law before proceeding, the trial of the accused would be irregular and shall stand vitiated. 15.6 In the case of Seeni Nainar Mohammed and Ors. v. State Rep. By Deputy Superintendent of Police, reported in AIR 2017 SC 3035 , the Hon'ble Supreme Court has dealt with the provisions of Section 20-A of Terrorist and Disruptive Activities (Prevention) Act, wherein the bar is created for cognizance of the offence without previous sanction of the Inspector General of Police or as the case may be the Commissioner of Police. By Deputy Superintendent of Police, reported in AIR 2017 SC 3035 , the Hon'ble Supreme Court has dealt with the provisions of Section 20-A of Terrorist and Disruptive Activities (Prevention) Act, wherein the bar is created for cognizance of the offence without previous sanction of the Inspector General of Police or as the case may be the Commissioner of Police. In para 10 of the judgment, the Apex court has observed that "it shall always be borne in mind by the sanctioning authority that application of such provisions which forms part of penal statutes requires strict interpretation and failure to comply with the mandatory requirement of sanction, before cognizance is taken, as mentioned in Terrorist and Disruptive Activities (Prevention) Act may vitiate the entire proceeding in the case." 15.7 In the case of Deepak Khinchi vs. State of Rajasthan, 2012 (5) SCC 284 , it has been held as under:- "14. It is true that learned Sessions Judge has, by his order dated 13.9.2007 discharged the appellant of the charges under Sections, 3, 4, 5 and 6 of the said Act because there was no sanction. But, the prosecution has now obtained sanction. The Sessions Judge has accepted the sanction and has directed that the trial should be started against the appellant for offences under Sections 3, 4, 5 and 6 of the said Act, as well. The order of the Sessions Judge is affirmed by the impugned order passed by the High Court. In view of the legal position as discussed above, and in the facts of the case, as narrated above, we see no reason to interfere in the matter and we direct the trial court to frame additional charges against the appellant under Sections 3, 4 5 and 6 of the said Act and to proceed with the trial. Needless to say that the stay of further proceedings granted by this Court on 5.7.2011 shall stand vacated." 15.8 In the case of State of Goa v. Babu Thomas , 2005 AIR (SC) 3606 , the Hon'ble Supreme Court has dealt with the provisions of Prevention of Corruption Act, 1988, particularly, sanction as required under Section 19 of the said Act. The Apex Court has considered the effect of absence of or any error, omissions or irregularity in the sanction required under the provisions of Statute and as to whether failure of justice has in fact been occasioned thereby. The Apex Court has observed in the facts of the said case that the said omission goes to the root of the prosecution case. However, considering the gravity of the allegations, the competent authority was permitted to issue fresh sanction order by an authority competent under the Rules and proceed afresh against the respondent from the stage of taking cognizance of the offence and in accordance with law. It appears from the tenor of the judgment that the case was at the stage of framing of charge and as such, considering the gravity of the allegations, the Supreme Court has given direction to issue fresh sanction order. Here in the above-referred case, of Deepak Khinchi (supra), sanction was received after the discharge order which was on the basis of want of sanction and in Babu Thomas (supra), the matter was at the stage of framing charges so order was for fresh sanction only. In the instant case, the trial is over without there being any consent by the District Magistrate as mandated by section 7 of the said Act of 1908. 16. The learned Trial Court Judge was referring to the negligence on the part of the investigating officer to ensure the sanction for the prosecution against the accused and referring to the object of the Act being defeated because of technical defect while referring to the need of the sanction as mandatory and being fatal to the prosecution case, the learned Judge came to the conclusion that though the trial vitiates, though the technicalities can be considered as fatal, considering the facts and circumstances, but referring to the intention of the legislature in enacting the provision mandatory in nature, observes it to be protective against the misuse of the Act or false or vexatious or wrong complaint taking disadvantage of the Act. Hence, when the Judge observed that there were evidence on record and when the provision laid down in the Act with its purpose and object is to ensure justice against the offence under the Act found a clear prima facie case against the accused with direct and circumstantial evidence. Hence, when the Judge observed that there were evidence on record and when the provision laid down in the Act with its purpose and object is to ensure justice against the offence under the Act found a clear prima facie case against the accused with direct and circumstantial evidence. Keeping in view the mandatory provision of the Act and observing the negligence in performing the duties, the learned Judge was of the view that the Court had no other option in the circumstances and cannot demand or tell the prosecution to produce the same observing that the Court cannot educate the prosecution against the interest of the accused and ultimately, found observing that the provisions which are named as mandatory in nature can be justifiable to take a defence to acquit the accused. Answering the same in negative, the learned Judge considered that the provisions considered it is a duty of the investigating officer to have obtained the sanction and submit it prior to the committal of case before the Court. Under the circumstances, the Judge commenting upon the negligence act of the investigating officer and technicalities of not obtaining the sanction was of the view that the Court is not powerless and with the paramount object of the Act and justice, believed the prosecution case even in absence of the consent to try the accused under the Explosive Substances Act, 1908. 17. Section 7 of the Act is a mandatory in nature. The expression “shall” in the provision itself puts a compulsion of securing the consent of the District Magistrate before proceeding against the accused. Non-production of the consent from the District Magistrate becomes fatal. It becomes mandatory for the investigating officer to receive the prior consent for the Court to proceed with the trial. The learned Judge has commented upon the negligence act of the investigating officer. However, the evidence of the investigating officer is required to be noted that he had already prepared a draft charge-sheet for the process and the draft charge-sheet was approved by the Police Commissioner and the charge-sheet was produced with the endorsement that on securing the consent, it would be produced during the trial. The evidence does not refer to sending the concerned documents along with the charge-sheet before the District Magistrate. The evidence does not refer to sending the concerned documents along with the charge-sheet before the District Magistrate. The investigating officer was required to send it to the District Magistrate rather he had referred the charge-sheet and the documents to the police Commissioner which the law does not mandate. The exercise which warranted was to deal with the District Magistrate for the prior consent. Section 7 lays down restriction on the trial, where no such consent is received from the District Magistrate. Such trial without the consent of the District Magistrate becomes invalid. The learned Trial Court has grossly erred by taking upon itself the duty to proceed against the accused even without the consent of the District Magistrate and affirming as Court have the power to proceed against the accused even without the consent of the District Magistrate. The learned Trial Court Judge failed to observe that admittedly, there was no consent of the District Magistrate on record and the law clarifies by way of Section 7 , the trial cannot proceed without consent of the District Magistrate and thus, it was explicit on record that the trial could not proceed against the accused under the Explosive Substances Act, 1908. The learned Judge failed to understand between the administrative power of the District Magistrate and the judicial power of the Court. The Court on its own cannot give sanction or consent for the trial. The right of the accused to defend the case challenging the consent order on the ground of non-application of mind of the authority concerned gets effected. The accused would be kept in dark if the Court takes upon itself that function as its duty which the law actually does not mandate. 18. The charge-sheet was filed under the IPC as well as Explosive Substances Act, 1908. The charge under the IPC could be proved by the witnesses even without consent under Section 7 of the Explosive Substances Act, 1908, the learned Trial Court Judge was required to observe that the trial against the accused under the Explosive Substances Act, 1908 is not sustainable in law and therefore, for want of consent under Section 7 of the said Act, the proceedings to that extent of the trial was required to be declared as invalid. 19. 19. In view of the reasons given hereinabove, the conviction of both the accused under Section 5 of the Explosive Substances Act, 1908 to undergo rigorous imprisonment for a period of two years is quashed and set aside, while the sentence under Sections 286 and 120B of the IPC stands upheld with the set off granted. The appellants are acquitted for the offence punishable under Section 5 of the Explosive Substances Act, 1908. Accordingly, the appeal is allowed in the above terms. Registry is directed to send the record and proceedings back to the Trial Court.